Madras High Court
Thangavel vs The State By Inspector Of Police on 5 December, 2018
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.03.2018
Pronounced on : 05.12.2018
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
Crl.A.No.124 of 2017
and Crl.M.P.No.3564 of 2017
Thangavel ... Appellant / Accused
Vs
The State by Inspector of Police
Chithode Police Station,
Erode District. ... Respondent / Complainant
Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, against the conviction imposed in the Judgment,
dated 16.02.2017 made in S.C.No.115 of 2016 on the file of the
learned I Additional District and Sessions Court, Erode, sentencing him
to undergo 7 years rigorous imprisonment with fine of Rs.1000/-, i/d
to undergo 3 months imprisonment for the offence under Section
304(ii) IPC.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.T.Shanmuga Rajeshwaran
Govt. Advocate (Crl. side)
JUDGMENT
This Appeal was filed against the Judgment and conviction http://www.judis.nic.inmade in Judgment, dated 16.02.2017 in S.C.No.115 of 2016 on the file of the I Additional District and Sessions Court, Erode, sentencing 2 the appellant / accused to undergo 7 years Rigorous Imprisonment with fine of Rs.1,000/-, in default to undergo 3 months Imprisonment for the offence under Section 304(II) IPC.
2. The case of the prosecution was that, the defacto complainant Lakshmi (PW1), her husband Kaliappan, son the deceased Balakrishnan, the deceased Balakrishnan's wife Radha and their children were living as joint family at Naripallam village. The deceased Balakrishnan was a omni van driver. The accused Thangavel is the father-in-law of the deceased Balakrishnan. The accused and his wife were living at a village called Mamarathupalayam near Naripallam. The accused was working as a security personnel in the nearby workshop. The accused wife Dhanalakshmi was running a petty shop and tea shop near their house at Mamarathupalayam.
3. The deceased Balakrishnan was a drunkard and he was fully addicted to alcohol, because of which he was not in the habit of giving money to the family expenses. Because of this position, there had been frequent quarrel between the deceased Balakrishnan and his wife Radha. A few days before the occurrence, the deceased's wife Radha pledged her Thali chain (Mangalsutra) in the Bank (Finance company) and obtained a loan of Rs.60,000/- and gave it to the deceased Balakrishnan to buy a omni car through finance. Accordingly, http://www.judis.nic.in Balakrishnan bought a car and running the same for rent and there 3 had been due in the finance company payable by the said Balakrishnan. However, Balakrishnan was not regularly attending to work for plying the car and not making efforts to repay the loan amount and not giving money to the family. Therefore Radha, wife of the deceased had picked up quarrel with the deceased Balakrishnan very frequently. However, the deceased Balakrishnan not followed or adhered to the advice given by the elders of both the families. There had been ill feeling between the deceased Balakrishnan and the accused.
4. It is the further case of the prosecution that, while so, on 27.11.2015 at about 12.30 p.m, Radha asked Balakrishnan for money to the family expenses, because of which there was a quarrel between them and due to that quarrel, the deceased Balakrishnan assaulted his wife Radha and Radha fallen down. The said incident was brought to the notice of the Radha's father, the accused herein, by Radha over phone and on hearing the said news, the accused Thangavel, who was residing at Mamarathupalayam visited the house of Balakrishnan and after some quarrel with the deceased, Thangavel took the family, i.e., his daughter Radha and grand children to his place, i.e., Mamarathupalayam. When that move was prevented by the deceased Balakrishnan and her mother, P.W.1, annoyed with the said attitude of the deceased and enraged with the said incident, the accused http://www.judis.nic.in Thangavel suddenly reacted by taking a aruval which was hidden by 4 him in the nearby bush behind the Murugan seizing Mill cart track running towards south at Naripallam and attacked the Balakrishnan at his shoulders, hand and leg. With the result, the deceased Balakrishnan fallen down in the ground with the pool of blood and after threatening P.W.1 and others, who came for rescue, the accused left the scene.
5. It is the further case of the prosecution that, thereafter P.W.1 along with her husband and daughter P.W.2 alerted for Ambulance and the deceased at the unconscious stage with the pool of blood was taken to the hospital at Erode, where after examining the deceased, the Doctors declared that he already dead or brought dead. Thereafter, the P.W.1 and her husband went to the police station and gave complaint to the respondent police. Based on which, FIR was registered and after investigation, the prosecution found that the accused only murdered the deceased and accordingly, charge sheet filed against the accused person for the offence punishable under Section 302 and 506(ii) IPC.
6. The said charge sheet taken on file by the Judicial Magistrate No.III, Erode in PRC No.4 of 2016 and on appearance of the accused, documents were furnished under Section 207 Cr.P.C and after perusing the case records, the learned Judicial Magistrate No.III, http://www.judis.nic.in Erode, committed the case to the Principal District and Sessions Judge, 5 Erode, as the offence under Section 302 IPC is exclusively triable by the Court of Sessions.
7. The committed case was taken on file by the Principal District and Sessions Judge, Erode, in S.C.No.115 of 2016 and the case was made over to the I Additional District and Sessions Judge, Erode, by whom the case was tried. Before the trial Court, 14 witnesses were examined for prosecution and Exs.P.1 to P.27 were marked and also the prosecution produced material objects, M.O.1 to M.O.12. There was no evidence on the side of the defence. After trial, the learned I Additional District and Sessions Judge, by the impugned Judgment, dated 16.02.2017 found the accused guilty for the offence under Section 304(II) IPC and accordingly, he convicted and sentenced the accused to undergo RI of 7 years and imposed a fine of Rs.1,000/-, in default the accused shall undergo imprisonment for a further period of three months. The period of detention already undergone by the accused was directed to be set off under Section 428 Cr.P.C. Aggrieved over the said conviction and the sentence made by the trial Court and assailing the same, the accused preferred this Appeal.
8. On the side of the appellant / accused, Mr.N.Manokaran, learned counsel appearing for the appellant / accused has raised four grounds. Firstly, the learned counsel denied the very involvement of http://www.judis.nic.in the accused in the crime. Secondly he submitted that, there had been 6 at least 3 complaints, one was at 2 p.m, at the date of occurrence at the spot, second was at 3 p.m at the hospital and the third was at 4.30 p.m at the police station made by the P.W.1, the mother of the deceased. Thirdly, the learned counsel would submit that, there were no weapons recovered as claimed by the prosecution and the arrest was made only next day to the day as claimed by the prosecution. Fourthly, the learned counsel for the petitioner submit that, the very presence of P.W.1 at the scene of crime is itself doubtful, because of his contradiction in his deposition.
9. By elaborating the aforesaid grounds, contradiction in evidence and also lack of proof to establish the case of the prosecution beyond reasonable doubt, the learned counsel for the appellant / accused would submit that, the accused had no way connected with the alleged incident and the said aspects, on the strength of the evidence, has not been considered in proper perspective by the learned Sessions Judge and therefore the punishment inflicted on him is liable to be interfered with and to be set aside.
10. Per contra, Mr.T.Shanmuga Rajeshwaran, learned Government Advocate (Crl side) appearing for the respondent / prosecution would submit that, there were 14 witnesses deposed before the trial Court, out of whom, some of them even though turned http://www.judis.nic.in hostile, majority of the witnesses produced by the prosecution side 7 had supported the case of the prosecution. He would further submit that, out of the three witnesses shown by the prosecution as eye witnesses, even though two of them turned hostile, the P.W.1, mother of the deceased, who had been, according to the prosecution, all along was with the deceased, had given cogent and believable evidence, therefore on the strength of the eye witness, i.e., P.W.1, the trial Court has come to a right conclusion that the accused was the reason for the occurrence, by which he attacked and inflicted injuries and that injuries due to shock and hemorrhage lead to the death of the deceased, as per the Doctors opinion, based on the post mortem and therefore, the trial Court had come to a right conclusion that, the accused was guilty for the offence, if not under Section 302 IPC, but under Section 304 (II) IPC. Accordingly, the trial Court convicted the accused for the said offence.
11. In order to corroborate the oral evidence, the learned Government Advocate (crl side) submitted that, 27 Exhibits on the side of the prosecution were marked and 12 material objects were produced. Therefore the oral as well as the documentary evidence cogently establish the case of the prosecution and by virtue of that, acquisition made against the accused was proved beyond reasonable doubt, as rightly accepted by the trial Court Judge. There is absolutely no infirmity in the Judgment and conviction made by the trial Court http://www.judis.nic.in against the accused. Hence the learned Government Advocate would 8 submit that, the impugned Judgment and conviction does not require any interference, therefore the appeal is liable to be dismissed.
12. I have considered the said submissions made by the learned counsel appearing for the appellant / accused as well as the learned Government Advocate (crl side) appearing for the respondent / prosecution and also perused the entire materials placed before this Court including the records.
13. The prosecution started investigating the case triggered by the compliant given by P.W.1, one Lakshmi, who is the mother of the deceased on the date of occurrence in the afternoon. According to P.W.1, on 27.11.2015 at about 12.30 p.m, there had been a quarrel between his son, deceased Balakrishnan and daugther-in-law Radha. With the result, Balakrishnan attacked his wife and she fallen down, therefore she made a complaint over phone to the accused, the father of the said Radha and father-in-law of the deceased. On the basis of the said information / complaint made by the Radha (P.W.3), the accused came to their house at about 1 p.m, where there had been quarrel between the deceased and the accused, with the result, the accused took his daughter, i..e, P.W.3 and grand children for his place called Mamarathupalayam. When the said move was prevented by the deceased and the P.W.1, annoyed with the said action on the part of http://www.judis.nic.in the deceased, the already enraged or furious accused, by using the 9 aruval, which was hidden by him in the nearby bush, had attacked the deceased at his shoulders, hand and leg, resultantly the deceased fell down on the ground with pool of blood and thereafter, after threatening everybody the accused left. P.W.1 further stated that, thereafter the deceased was taken to hospital by her and her husband, where after examination, the Doctor declared that the deceased already dead and only thereafter P.W.1 came with her husband to the police station and gave compliant, which was registered as an FIR.
14. In order to appreciate the said prosecution theory, let me take the content of the complaint, Ex.P.1 given by P.W.1 and the relevant portion of which reads thus :
"uhjhtpd; bgw;nwhh; khkuj;Jghisaj;jpy; FoapUf;fpwhh;fs;/ ghyfpUc&;zDf;F FogHf;fk; cz;L/ mjdhy; uhjht[f;Fk;. ghyfpUc&;zDf;Fk; mof;fo rz;il tUk;/ kUkfs; uhjh mtsJ jhypf;bfhoia mlkhdk; itr;R U:/60.000-- fld; th';fp ghyfpUc&;zdplk; bfhLj;J Mk;dp ntd; th';fp mij thliff;F Xl;o tUfpwhd;/ ,d;Dk; igdhd;rpy; fld; ghf;fp ,Uf;F/ ,d;idf;F 27/11/15k; njjp kjpak; 12/30 kzpapypUe;nj uhjh mth; fzth; ghyfpUc&;zdplk; eP Fof;fpwj tplkhl;l. jhypf;bfhoiaa[k; jpUg;gp ju khl;nl';fpw vd;W nfl;L ,UtUf;Fs; rz;il te;jJ/ mjdhy; nfhgk; te;J ghyfpUc&;zd; uhjhit mor;R nghl;lhs;/ mjdhy; uhjh mt mg;gh j';fntYt[f;F nghd; gz;zp ,ij brhd;dhs;/ bfh";r neuj;Jy rk;ge;jp j';fnty; v';f tPl;Lf;F te;J ele;jij nfl;Ll;L nfhgkhf uhjhita[k;. FHe;ijfs; ,uz;L ngiua[k; Tl;lfpl;L vd; Tl te;JU. http://www.judis.nic.in ,tndhl bghGr;rJ nghJk; vd;W mth;fis Tl;o bfhz;L v';f tPl;Lf;F bjw;nf Rkhh; 500 mo J}uj;jpy; ,Uf;Fk; KUfd; irrp'; kpy; fhuu; 10 fhl;oy; nghFk; tz;o jlj;jpy; bjw;F nehf;fp Tl;o bfhz;L nghdhh;/ mg;g ehDk;. vdJ kfDk; ngha; rk;ge;jp j';fntYtplk; Tl;o bfhz;L nghf ntz;lhk;. tpl;Ll;L ngh';f vd;W brhd;ndhk;/ mg;g j';fntYt[f;Fk; vdJ kfd; ghyfpUc&;zDf;Fk; tha; jfuhW Vw;gl;L nghr;R/ ,jw;F nky; cd;id tpl;lhy; rhpahfhJ. vd; bghz;Qq epk;kjpaha; thH KoahJ. ,U cd;id vd;d gz;nwd; ghh; vd;W brhy;yp bfhz;nl Vw;fdnt j';fnty; gf;fj;jpy; g[jh; bro kiwtpy; kiwj;J itj;jpUe;j mwpthis vLj;J ,njhl cd; fijia Kof;fpnwz;lh ghh; vd;W brhy;yp bfhz;L ghyfpUc&;zid ,lJ gf;f njhs;gl;ilapYk; fhy;fspYk; khwp. khwp X';fp btl;odhh;/ mg;nghJ fPnH tpGe;j vdJ kfd; ghyfpUc&;zid j';fnty; kPz;Lk; mUthshy; KH';fhypy; btl;odhd;/ ,jdhy; mtDf;F gyj;j uj;jfha';fs; Vw;gl;L tpl;lJ/ ,e;j rk;gtk; elf;Fk;nghJ kjpak; Rkhh; 2/00 kzp ,Uf;Fk;/ ehDk; kUkfs; uhjht[k; rj;jk; nghl;nlhk;/ mf;fk; gf;fk; ,Ue;jth;fSk; vd; fztUk; m';F te;jh';f/ vd;ida[k; mt';fisa[k; ahuhtJ gf;fj;Jy te;jh c';fisa[k; btl;o nghLntd; vd;W mUthis fhl;o v';fis kpul;o tpl;L j';fnty; mUthSld; tlf;nf nuhl;oy; ntfkhf nghapl;lhh;/ ahUk; jLf;fiy/ eh';f Mk;g[yd;ir tutiHj;J vd; kfid <nuhL murh';f M!;gj;jphpf;F bfhz;L nghndhk;/ lhf;lh; ghh;j;Jl;L Vw;fdnt vdJ kfd; ghyfpUc&;zd; ,we;J tpl;ljhf brhd;dhh;/ mg;g kjpak; 3/00 kzp ,Uf;Fk;/ ehd; vd; fzth;. vd; kfs; kyh;bfhoa[ld; rpj;njhL fhty; epiyak; te;J g[fhh; bfhLf;fpnwd;/ ,J rk;ge;jkhf tprhhpj;J eltof;if vLf;Fk;go nfl;Lf; bfhs;fpnwd;/"
15. Based on the said complaint, in fact, Ex.P.11, FIR was made and only pursuant to which, according to prosecution, http://www.judis.nic.in investigation commenced. However the very same P.W.1, i.e., mother of the deceased in the cross-examination before the trial Court 11 deposed as follows :
"vjphp tHf;fwp"h; nfs;tp :
fhupy; vd; kfid kUj;Jtkidf;F vLj;Jr; brd;wnghJ nghyPrhu; vd;id re;jpj;jhh;fsh?
rhl;rp gjpy; :
nghyPrhu; murh';f kUj;Jtkidapy; vd;id ghu;j;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
mg;nghJ gfy; 3/00 kzp ,Uf;Fkh? rhl;rp gjpy; :
mg;nghJ kzp 3/00 ,Uf;Fk;/ vjphp tHf;fwp"h; nfs;tp :
mg;nghJ vd;d ele;jJ vd;W nghyPrhu; nfl;lhu;fsh? rhl;rp gjpy; :
mg;nghJ vd;d ele;jJ vd;W nghyPrhu; nfl;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
ele;j tptu';fis brhd;dPu;fsh? rhl;rp gjpy; :
ele;j tpgu';fis ehd; brhd;ndd;/ vjphp tHf;fwp"h; nfs;tp :
ehd; brhd;dij nghyPrhu; vGjpf; bfhz;lhu;fsh? rhl;rp gjpy; :
ehd; brhd;dij nghyPrhu; vGjpf; bfhz;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
mjpy; ahu; ahu; ifbaGj;Jg; nghl;lhu;fs;? rhl;rp gjpy; :
vd; kfs; kl;Lk; ifbaGj;Jg; nghl;lhu;/ http://www.judis.nic.in /// vjphp tHf;fwp"h; nfs;tp :12
vd; kfs; tUk;tiuapYk;. vd; kfd; fhak;gl;l ,lj;jpnyna fple;jhu;?
rhl;rp gjpy; :
vd; kfs; tUk;tiuapYk;. vd; kfd; fhak;gl;l ,lj;jpnyna fple;jhu;/ vjphp tHf;fwp"h; nfs;tp :
vd; kfs; nrUtjw;F vt;ts[t neuk; Mapw;W? rhl;rp gjpy; :
vd; kfs; te;J nrUtjw;F Ie;J epkplk; MfpapUf;Fk;/ vjphp tHf;fwp"h; nfs;tp :
vd; kfs; te;J nru;e;jt[lnd nghyPRf;F jfty; brhd;ndd;? rhl;rp gjpy; :
vd; kfs; te;J nru;e;jt[ld; nghyPRf;F jfty; brhd;ndhk;/ vjphp tHf;fwp"h; nfs;tp :
jfty; brhd;dt[ld; nghyPrhu; te;Jtpl;lhu;fs;? rhl;rp gjpy; :
jfty; brhd;dt[ld; nghyPrhu; te;Jtpl;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; Mk;g[yd;!; miHj;jhu;fs;? rhl;rp gjpy; :
nghyPrhu; te;J Mk;g[yd;ir miHj;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; te;jt[ld; jhd; Cu;f;fhuu;fs; te;jhu;fsh? rhl;rp gjpy; :
Cu;f;fhuu;fs; te;j gpwF jhd; nghyP!;fhuu;fs; te;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
http://www.judis.nic.in mg;nghJ kzp Rkhuhf vd;d ,Uf;Fk;? rhl;rp gjpy; :13
mg;nghJ kzp ,uz;L ,Uf;Fk;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; te;jnghJ kzp vd;d ,Uf;Fk;? rhl;rp gjpy; :
nghyPrhu; te;jnghJ kzp ,uz;liu ,Uf;Fk;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; te;J vd;ida[k;. vd; kfisa[k; rk;gtk; vg;go ele;jJ vd;W tprhupj;jhu;fsh?
rhl;rp gjpy; :
nghyPrhu; te;J vd;ida[k;. vd; kfisa[k; rk;gtk; vg;go ele;jJ vd;W tprhupj;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; tprhupj;jt[ld; vGjpf;bfhz;lhu;fsh? rhl;rp gjpy; :
nghyPrhu; tprhupj;jt[ld; vGjpf;bfhz;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPthu; vd;dplk; ifnuif th';fp bfhz;lhu;fsh? rhl;rp gjpy; :
ifnuif th';fp bfhz;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; fhak;gl;oUe;j vd; kfida[k;. me;j ,lj;ija[k; Rw;wpg;ghu;j;jhu;fsh ?
rhl;rp gjpy; :
nghyPrhu; fhak;gl;oUe;j vd; kfida[k;. me;j ,lj;ija[k; Rw;wpg;ghu;j;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
http://www.judis.nic.in nghyPrhu; nguf;FHe;ijfs; ,Utiua[k; th';fpf;bfhz;lhu;fs;? rhl;rp gjpy; :14
nghyPrhu; FHe;ijfis th';fpbfhs;stpy;iy/ vjphp tHf;fwp"h; nfs;tp :
mg;nghJ vd; kfd; ngRk; epiyapy; ,Ue;jhuh vd;W nfhjpj;jhu;fs; ?
rhl;rp gjpy; :
nghyPrhu; vd; kfs; ngRk; epiyapy; ,Ue;jhuh vd;W nrhjpj;jhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
nghyPrhu; jz;zPu; bfhLj;jhu;fsh? rhl;rp gjpy; :
nghyPrhu; jz;zPu; bfhLf;ftpy;iy/ ehd; jhd; jz;zPu; bfhLj;njd;/ vjphp tHf;fwp"h; nfs;tp :
fGj;jpy; fhakpUe;jij nghyPrhuplk; fhl;odPu;fsh? rhl;rp gjpy; :
fGj;jpy; fhakpUe;jij nghyPrhuplk; ehd; fhl;ondd;/ vjphp tHf;fwp"h; nfs;tp :
vd;dplk; ,Ue;j ,uj;jk; goe;j Jzpfis nghyPrhu; th';fp bfhz;lhu;fsh?
rhl;rp gjpy; :
vd;dplk; ,Ue;j Jzpfis th';ftpy;iy/ /// vjphp tHf;fwp"h; nfs;tp :
mjd; gpwF vd; kfid I!; bgl;oapy; rtf;fpl';fpy; itj;Jtpl;lhu;fsh?
rhl;rp gjpy; :
http://www.judis.nic.in mjd; gpwF vd; kfid rtf;fpl';fpy; itj;Jtpl;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :15
mjd; gpwF vj;jid kzpf;F ahu; ahu; rpj;njhL fhty;epiyak; brd;wPu;fs;?
rhl;rp gjpy; :
vd; kfs;. vd; fztu;. ehd; Mfpnahu; rpj;njhL fhty; epiyak; brd;nwhk;/ vjphp tHf;fwp"h; nfs;tp :
rpj;njhL fhty;epiyak; nghFk;nghJ kzp vd;d? rhl;rp gjpy; :
rpj;njhL fhty;epiyak; nghFk;nghJ kzp 4/00 ,Uf;Fk;/ vjphp tHf;fwp"h; nfs;tp :
m';F vd; rk;ke;jpia nghyPrhu; gpoj;J itj;J ,Ue;jhu;fs;? rhl;rp gjpy; :
m';F vd; rk;ke;jpia nghyPrhu; gpoj;J itj;J ,Ue;jhu;fs;/ /// vjphp tHf;fwp"h; nfs;tp :
,e;j tprhuizf;F vt;tst[ neukhdJ? rhl;rp gjpy; :
,e;j tprhuizf;F fhy; kzp neukhdJ/ vjphp tHf;fwp"h; nfs;tp :
mjd; gpwF vt;tst[ neuk; fHpj;J ,e;j g[fhu; vGjg;gl;lJ? rhl;rp gjpy; :
clnd vGjptpl;lhu;fs;/ mg;gnt vGjptpl;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
,e;j g[fhiu ahh; vGjpaJ?
rhl;rp gjpy; :
,e;j g[fhiu SI vGjpdhu;/ vjphp tHf;fwp"h; nfs;tp :
http://www.judis.nic.in ,e;j g[fhu; vj;jid gf;fk; vGjg;gl;lJ? rhl;rp gjpy; :16
me;j g[fhu; 3 gf;fk; vGjg;gl;lJ/ vjphp tHf;fwp"h; nfs;tp :
g[fhupy; ehd; nuif itj;njd;/ ahu; ahu; rhl;rp ifbaGj;J nghl;lhu;fs;?
rhl;rp gjpy; :
fhu;j;jpf;. nltpl; Mfpnahu; rhl;rp ifbaGj;jpl;lhu;fs;/ vjphp tHf;fwp"h; nfs;tp :
SI vGjpajhy; me;j g[fhupy; vd;d vGjp ,Uf;fpwJ vd;W vdf;F bjupahJ?
rhl;rp gjpy; :
SI vGjpajhy; me;j g[fhhpy; vd;d vGjp ,Uf;fpwJ vd;W vdf;F bjupahJ/ /// vjphp tHf;fwp"h; nfs;tp :
vd;dplk; vGjhj bts;is ngg;gupy; nuif th';fptpl;L gpd;dpl;L SI g[fhiu fhty;epiyaj;jpy; vGjpajhy; jhd; Kd;gf;fk; ,ilbtspapy;yhky; epug;gg;gl;Lk;. mLj;jg;gf;fk; ,ilbtsptpl;Lk; epug;gg;gl;Ls;sJ ? rhl;rp gjpy; :
vd;dplk; vGjhj bts;is ngg;gupy; nuif th';fptpl;L gpd;dpl;L SI g[fhiu fhty;epiyaj;jpy; vGjpajhy; jhd; Kd;gf;fk; ,ilbtspapy;yhky; epug;gg;gl;Lk;. mLj;jgf;fk; ,ilbtsptpl;Lk; epug;gg;gl;Ls;sJ vd;W brhd;dhy; rupjhd;/ vjphp tHf;fwp"h; nfs;tp :
Vw;fdnt nghyPrhu; ,uz;LKiw g[fhiu bgw;Wtpl;L mjpy; ehd; brhy;ypa[s;s r';fjpfs; tHf;fpw;F vjpuhf cs;sjhy; me;j http://www.judis.nic.in g[fhu;fis kiwj;Jtpl;L gpd;dpl;L fhty;epiyaj;jpy; K:d;W gf;f';fis bfhz;l g[fhu; xd;iw jahupj;Jtpl;Lk; mjpYs;s 17 r';fjpfSk; vjpupf;F vjpuhf ,Ue;jjhy; gpd;dpl;L fhty;Jiw Mnyhridapd; go tHf;fpw;F Vw;whw;nghy; g[fhu; jahu; bra;Jbfhs;tjw;F VJthf ehd; bts;is ngg;gupy; if nuif itj;Jf;bfhLj;njd;?
rhl;rp gjpy; :
Mk; bts;is ngg;gupy; if nuif itj;Jf;bfhLj;njd;/"
16. The aforementioned deposition of the P.W.1, has made it clear that, according to her, the police came to the spot at about 2 p.m or at least before 2.30 p.m and they had an enquiry. Again the police had also come to the hospital, where they had an enquiry and according to P.W.1, the accused was already caught and brought by the police to the hospital itself and thereafter, the SI of Police, i.e., P.W.12 written the complaint and further according to P.W.1, she along with her husband claimed to have come to the police station and gave a complaint, which according to P.W.1 was written by P.W.2, the daughter of P.W.1 and sister of the deceased. Whereas the case of the prosecution is that only on receipt of the complaint at police station, which was given by P.W.1, who came along with her husband, the said complaint was registered as FIR and investigation was commenced. Since the P.W.1 is the crucial eye witness and in fact the only eye witness according to the prosecution and also the complainant, which only triggered the prosecution to make the investigation, has made http://www.judis.nic.insuch a deposition before the trial Court, which are absolutely self-
contradictory.
18
17. Therefore this Court prima facie feel that, there is a substance in the argument advanced by the learned counsel for the appellant / accused that, there seems to be at least three complaints, one is at 2 p.m in the spot, another one is at 3.30 p.m at the hospital and the last one is at 4.30 p.m in the police station. Therefore based on which compliant, the FIR was registered is the question to be probed.
18. However the prosecution is reiterating the stand that, the FIR was prepared based on the complaint given by the P.W.1 at 4.30 p.m on 27.11.2015, i.e., the date of occurrence, at police station. If the evidence of the P.W.1 is taken into account, certainly the theory of the prosecution right from the registering of the FIR is highly doubtful.
19. P.W.13, Investigating Officer has made the following deposition before the trial Court :
"ehd; jw;nghJ nryk; ,Uk;ghiu kJtpyf;F mKy;gphptpy; fhty; Ma;thsuhf gzpahw;wp tUfpnwd;/ ,jw;F Kd; 27/11/2015 md;W rpj;njhL fhty; epiyaj;jpy; Ma;thsuhf gzpg[hpe;J tUk;nghJ khiy 5/30 kzpf;F rpj;njhL ehy;nuhl;oy; nuhe;J mYtypy; ,Uf;Fk;nghJ Kjy;epiy fhtyh; http://www.judis.nic.in 1056 bre;jpy;Fkhh; vd;gth; rpj;njhL fhty; epiya Fw;w vz;/501-2015 u/s 302. 506(ii) IPC Fwpj;j Kjy; jfty; 19 mwpf;ifia gjpt[ bra;jij rpwg;g[ cjtpahsh; gpufhc&; vd;gthplk; ehd; bgw;W tprhuizf;F vLj;Jf;bfhz;nld;/ khiy 6/00 kzpf;F rk;gt ,lk; ehpg;gs;sk; KUfd; irrp'; kpy; fhl;oy; cs;s tz;oj;jlj;jpy; brd;W rhl;rpfs; fUg;gz;zrhkp. nfhtpe;jrhkp Mfpnahh; Kd;dpiyapy; rk;gt ,lj;ij ghh;itapl;L ghh;it kf$h; jahh; bra;njd;/ /// rk;gt ,lj;ij md;W ,uthfp tpl;ljhy;. md;iwa jpdk; tprhuiz Koj;Jf;bfhz;L mLj;jehs; 28/11/2015 md;W fhiy 6/30 kzpf;F <nuhL kUj;Jtkid brd;W gpztiwapy; ,we;J nghd ghyfpUc&;zd; vd;gthpd; gpnujj;ij g";rhaj;jhh; Kd;dpiyapy; rhl;rpfid tprhhpj;njd;/ fhiy 6/30 Kjy; 9/00 kzp tiu gpnuj tprhuiz bra;njd;/ ehd; jahhpj;j gpnuj tprhuiz mwpf;if m/rh/M/15. bgz; jiyik fhtyh; 1889 jpUkjp/fiyr;bry;tp K:yk; ntz;Lnfhs; fojk; K:yk; gpnujj;ij gpnuj ghpnrhjidf;F mDg;gp itj;njd;/ <nuhL muR kUj;JtkidapypUe;J fhty; epiyaj;jpw;F fpilj;j ghyfpUc&;zd; ,wg;g[ Fwpj;j ,wg;g[ tptuk; (Death Intimation) m/rh/M/16. tpgj;J gjpntl;od; efy; m/rh/M/17. gpwF kUj;Jtkid rhl;rp fhspag;gd;. kyh;bfho. fhh;j;jpf;. nyhfehjd;. gpufhc&;. fhh;j;jpf; Mfpnahh;fis tprhhpj;J thf;FK:yk; gjpt[ bra;njd;/ rhl;rp yl;Rkp vd;gtiu muR kUj;Jtkidapy; kPz;Lk; tprhhpj;J thf;FK:yk; gjpt[ bra;njd;/ gpwF ,t;tHf;fpy; rhl;rpfs; gpufhc&; kw;Wk; fhh;j;jpf; ,th;fSld; nghyP!; ghh;l;oa[ld; vjphpia gy ,l';fspy; njoa[k;. 28/11/2015k; njjp fhiy 10/45 kzpf;F Mag;gs;sp nuhl;oy; my; mkPd; !;Ty; gpd;g[wk; vjphpia gpoj;J tprhhpf;f vjphp j';fnty; mth; jdJ Fw;wj;ij http://www.judis.nic.in xg;g[f;bfhz;ljd; nghpy; ifJ bra;J tprhhpf;Fk;nghJ mth; jhkhf Kd;te;J bfhLj;j xg;g[jy; thf;FK:yj;ij rhl;rpfs; 20
gpufhc&;. fhh;j;jp Mfpnahh; Kd;dpiyapy; fhiy 10/45 Kjy; 11/45 tiu gjpt[ bra;njd;/ vjphp jd;id miHj;Jr; brd;why; rk;gtk; ele;j ,lj;ij milahsk; fhl;o rk;gtj;jpd; nghJ vd; kUkfd; ghyfpUc&;zid bfhiy bra;a (Ml;nrgida[ld;) gad;gLj;jpa mUthisa[k;. ,uj;jf;fiw goe;j jd; Jzpfisa[k; kiwj;J itj;Js;s ,lj;ij milahsk; fhl;o M$h; bra;fpnwd; vd;W xg;g[jy; thf;FK:yj;jpy; Twpdhh;/"
20. Even though it was the case of the prosecution, as deposed by the P.W.13, the Investigating Officer that, the accused was arrested on 28.11.2015 at 10.45 a.m and the confession statement was obtained from him between 10.45 and 11.45 a.m in the presence of the witness, P.W.7-Karthi and P.W.10-Prakash, both of them turned hostile. Therefore the arrest as well as the recovery as projected by the prosecution has not been proved beyond doubt, as the two witnesses, who had been examined by the prosecution in support of their contention had in fact not supported the case of the prosecution.
21. Therefore the contention made by the learned counsel appearing for the appellant / accused that, the recovery of weapon was false and the arrest was not taken place as claimed by the prosecution on that day, can be accepted.
22. Further, when we peruse the Ex.P.13, rough sketch of the scene of occurrence, it can be found that, just opposite to the deceased house, there is a pucca thar (Black Top) road, which leads http://www.judis.nic.in on the left side from the deceased house towards Naripallam bus stop 21 and that is the road which lead to the Mamarathupalayam village where the accused is residing. However the scene of occurrence spot exactly shown in a cart track, which goes towards one Ramu Gounder's AC sheet house and another diversion of the cart track goes to Murugan Gounder sizing mill. Both the cart track did not lead further to anywhere. When we see Ex.P.13, rough sketch, it does not suggest that, towards moving to Mamarathupalayam, the place of the accused, he had to take the cart track. In fact the cart track road need not be taken by the accused to reach his place, since the said cart track appear to be leading to the nearby place, i.e., Ramu gounder's AC sheet house and murugan gounder sizing mill and beyond that, cart track did not extend further. Therefore, it is hardly believable the theory of the prosecution that, after picked up quarrel with the deceased, the accused took his daughter and grand children towards his place called Mamarathupalayam, for the said purpose, he took the cart track, where the occurrence was taken place.
23. The prosecution theory at no stretch of imagination matches with the rough sketch, as absolutely the accused had no occasion to move towards the cart track for reaching the Mamarathupalayam. Therefore in this context, the theory of the prosecution is to be doubted and it cannot be said that, the accused took the wife of the deceased and children, who is none other than the http://www.judis.nic.in daughter and grand children of the accused towards or along with the 22 cart track, as no purpose would be served on him to travel in the cart track, which would be ending in the very next or adjacent property or land belong to Ramu Gounder and Murugan Gounder.
24. The P.W.1 in her cross-examination has further deposed as follows :
nkw;go rk;gt ,lk; vd; tPl;oypUe;J 1 fp/kP J}uj;jpypUf;Fk;/ vd; tPl;oypUe;J rk;gt ,lk; nkw;nf nghFk; jlj;jpypUf;fpwJ/ vd; tPl;ow;F nkw;F. fpHf;nf jhu; nuhL ,Uf;fpwJ/ eupg;gs;sj;jpy; eh';fs; ,Uf;Fk; tPL kl;Lk; jhd; v';fs; brhe;jkhd ,lk;/ me;j ,lj;ij ehd; jhd; th';fp vd; kUkfs; uhjh bgaupy; ghjpa[k;. vd; bgaupy; ghjpa[k; gl;lh th';fpapUf;fpnwd;/ mJ g[wk;nghf;F epyk;/ md;iwa jpdk; fhiy 10/00 kzpf;F vd; rk;ke;jp v';fs; tPl;ow;F te;jhu;/ v';fs; igad; mg;nghJ tPl;oy; ,y;iy/ vjpupia tPl;oy; tuntw;W fhgp bfhLj;njd;/ Kjypy; te;jtu; fpsk;gptpl;lhu;/ kPz;Lk; 1/00 kzpf;F te;jhu;/ fhiy 10/00 kzpapypUe;J 1/00 tiu ve;jtpj gpur;rida[k; fpilahJ/ vd; kfd; 12/45 kzpf;F te;jhd;/ vd; kfd; te;jgpwF tha;r;rz;il MdJ/ mg;nghJ vjpup rhjhuzkhfj;jhd; te;jpUe;jhu;/ vjpup jd; kfisa[k; miHj;J brd;whu;/ mtu; nghFk; nghJ kzp 2/00 ,Uf;Fk;/ kfis miHj;J bry;fpwhu; vd;W vd; kfd; Juj;jp brd;whu;/ jhu;nuhl;oy; ngha;f; bfhz;oUf;Fk;nghJ vd; kUkfSf;F mjpu;r;rpahd R{H;epiyapy; $d;dp te;Jtpl;lJ/ vjpupna mtu; kfis fhupy; vLj;Jr; brd;Wtpl;lhu;/ http://www.judis.nic.in
25. However in the Inquest Report, i.e., Ex.P.15, the 23 Investigating Officer has recorded the following :
"igdhd;rpYk; fld; ghf;fp ,Ue;Js;sJ/ ghyfpUc&;zd; Foj;J tpl;L ntiyf;F rupahf nghfhjjhYk;. flid fl;l Kaw;rp vLf;fhjjhYk;. ruptu tPl;L bryt[f;F gzk; bfhLf;fhjjhYk;. uhjh ghyfpUc&;zdplk; gzk; nfl;L rz;il te;Js;sJ/ mt;tg;nghJ ,U FLk;gj;jpd; bgw;nwhh;fSk; ghyfpUc&;zDf;F g[j;jpkjp brhy;ypa[k; ghyfpUc&;zd; mij nfl;fhky; ,Ue;Js;shh;/ new;W 27/11/15k; njjp gfy; Rkhh; 12/30 kzpf;F uhjh nkw;fz;l fhuz';fshy; ghyfpUc&;zdplk; mth;fSf;Fs; rz;il Vw;gl;L uhjhit ghyfpUc&;zd; moj;J fPnH js;spa[s;shh;/ mjdhy; uhjh mGJ bfhz;nl ,e;j rk;gtj;ij khkuj;Jg;ghisaj;jpy; jdJ jfg;gdhh; j';fntYt[f;F bry;nghd; K:yk; brhy;ypa[s;shh;/ bfh";r neuj;jpy; j';fnty; uhjhita[k;. FHe;ijfs; ,uz;L ngiua[k; Tl;of; bfhz;L jd; tPl;Lf;F nghtjw;fhf Tkhh; 500 mo J}uj;jpy; kjpak; 2/00 kzpastpy; KUfd; irrp'; kpy;fhuh; fhl;oy; nghFk; tz;ojlj;jpy; bjw;F nehf;fp ele;J Tl;of; bfhz;L ngha[s;shh;/ mg;nghJ ghyfpUc&;zDk; jhahh; yl;Rkpa[k; gpd;dhona ngha; mth;fis tpl;L tpl;L nghfr; brhy;yp j';fntYtplk; brhy;y tha; jfuhW Mfp nfhgj;jpy; j';fnty; Vw;fdnt m';F gf;fj;jpy; brokiwapy; igapy; nghl;L kiwj;J itj;jpUe;j mUthis vLj;J ghyfpUc&;zdpd; ,lJ. tyJ njhs;gl;ilapy; btl;oa[k; gyj;j uj;jfha';fis Vw;gLj;jpa[s;shh;/ mg;nghJ ghyfpUc&;zd; jLj;jjpy; mtuJ ,lJ cs;s';ifapy; btl;Lf;fhak; Vw;gl;Ls;sJ/ gpwF ghyfpUc&;zd; fPnH tpGe;jnghJ kPz;Lk; j';fnty; mtuJ tyJ ,lJ KG';fhy;fspYk; khwp khwp mUthshy; btl;oajpy; ghyfpUc&;zDf;F gyj;j uj;jf;fha';fs; Vw;gl;Ls;sJ/"
http://www.judis.nic.in
26. When the P.W.1, mother of the deceased, who was 24 claimed to be at the house of the deceased at the time of quarrel between the accused and the deceased, claimed that, at 10 a.m, on the day, accused came to their house and P.W.1 claimed to have received the accused and offered coffee, then he left. However at 1 o clock, he came, at 12.45 his son, the deceased came. After he came, there had been a wordy quarrel and at that time, the accused had come there as usual and he took his daughter at about 2 p.m. When he moved in the black top road (Thar road), the P.W.3, wife of the deceased developed Jenni. Therefore the accused took her in car. The aforesaid deposition is completely against the prosecution theory, because at about 12.30 p.m, on the date of occurrence, there had been a wordy quarrel between the husband and wife, i.e., deceased and P.W.3. In the result, the deceased beaten the P.W.3, who fell down, therefore she informed the same to his father, i.e., the accused by phone. Only after hearing that news, the angry accused who was the father of P.W.3 and father-in-law of the deceased came to their house at Naripallam at about 1 p.m and therefore there was further quarrel between the accused and the deceased and finally the accused left the home by taking his daughter P.W.3 and grand children.
27. However, the P.W.1 has made it very categorically that, morning 10 'o' clock, he came as usual, since the deceased was not http://www.judis.nic.inthere, he left and about 1 p.m again he came, at that time there had been a quarrel and when he came at 1 p.m, the accused came as 25 usual and he took his daughter and moved towards his place, i.e., Mamarathupalayam through the black top road.
28. The entire prosecution theory rest with this reasoning and the theory given by P.W.1 and the theory given by the prosecution in this juncture is contrary to each other. Because the accused never came to the deceased house on the date of occurrence, as claimed by the prosecution, that the accused had come only on the basis of the complaint given by P.W.3 about beating of her husband, resultantly she fallen down. The accused came only as a guest as usual on that day at 10 a.m as P.W.1 claimed that, he came as usual and he was received well and coffee was offered to him.
29. Though the prosecution claimed that, the FIR was given at 4.30 p.m, at the police station, it had been proceeded as if, that the FIR was registered at 2.30 p.m.
30. In this regard, this Court is able to note the following contradictions :
(i) In the complaint, i.e., Ex.P.1, the Sub-Inspector of Police who received the said complaint recorded as follows :
"rkh;gpf;fg;gLfpwJ ,d;W 27/11/2015k; njjp 16/30 kzpf;F vd;dhy; ,g;g[fhh; http://www.judis.nic.in kD bgwg;gl;L rpj;njhL fhty; epiya Fw;w vz; 501-2015 u/s
302. 506(ii) IPC tHf;F gjpt[ bra;ag;gl;lJ/ 26 Sd/-
cjtp Ma;thsh;
rpj;njhL fhty; epiyak;
<nuhL khtl;lk;"
(ii) Whereas in the chief examination, the very same Sub Inspector of Police, P.W.12, deposed before the trial Court, which reads thus :
"Kjy; tprhuiz ehd; jw;nghJ rpj;njhL fhty; epiyaj;jpy; rpwg;g[ cjtp Ma;thsuhf gzp g[hpfpnwd;/ ,e;j tHf;fpd; nghJk; ehd; rpj;njhL rpwg;g[ cjtp Ma;thsuhf ,Ue;njd;/ fle;j 27/11/2015 md;W ehd; gzpapypUe;jnghJ 14/30 kzpf;F yl;Rkp taJ 45 fzth; bgah; fhspag;gd; 140 ehpg;gs;sk; rpj;njhL vd;gth; jdJ kfs; kyh;bfhoa[ld; epiyak; M$uhfp bfhLj;j vGj;Jg{h;tkhd g[fhiu bgw;W rpj;njhL fhty; epiya Fw;w vz; 501-2015 u/s 302. 506(ii) IPC tHf;F gjpt[ bra;njd;/ ehd; gjpt[ bra;j mr;R Kjy; jfty; mwpf;if m/rh/M/11. ehd; gjpt[ bra;j mr;R Kjy; jfty; mwpf;ifapd; mriya[k;. g[fhiua[k; ,izj;J fzk; ePjpj;Jiw eLth; vz;/3. <nuhL mth;fSf;F. Kjdpiy fhty; bre;jpy;Fkhh; vd;gth; K:yk; Kjy; jfty; mwpf;ifia Jhpj jghy; K:yk; mDg;gpndd;/ kw;w efy;fis Jhpj jghy; K:yk; cah; mjpfhhpfSf;F mDg;gp itj;njd;/ mjpy; xU efiy Ma;thsUf;F g[yd; tprhuizf;fhf mDg;gp itj;njd;/ ,J rk;ge;jkhf Ma;thsh; vd;id tprhhpj;jhh;/"
(iii) Even though the FIR was claimed to have been http://www.judis.nic.in registered at 16.30 hours on 27.11.2015, he deposed before the trial 27 Court that, it was registered at 14.30 hours.
(iv) The trial Court also approached this issue as if that, the FIR was registered at 14.30 hours. The relevant portion of the discussion made in this regard by the trial Court reads thus :
"33. The contention of the learned counsel for the accused is that there is a delay of 5 1/2 hours in submitting the FIR and complaint to the learned Judicial Magistrate No.III, Erode. As per the prosecution case, the date and time of occurrence is 27.11.2015 2.00 p.m. As per the statement of PW1 she lodged the complaint on 27.11.2015 at about 14.30 p.m, but the FIR was received by the learned Judicial Magistrate No.III, Erode by 7.30 p.m on 27.11.2015. The distance between the scene of occurrence and to the police station is 5 km. The distance between the police station and the residence of the learned Judicial Magistrate is 16 km. Therefore there is a delay of 5 1/2 hours in receiving the FIR along with the complaint by the learned Judicial Magistrate No.III, Erode. The delay of 5 1/2 hours are not properly explained by the prosecution.
The further contention of the learned counsel for the accused is that as per the deposition of PW1 she gave the complaint to the PW12 Special Sub Inspector of Police and the Special Sub Inspector of Police registered the FIR but the PW1 in her http://www.judis.nic.in cross examination has stated that the police got her thumb impression in the Erode Government Hospital and also got the signature of her 28 daughter PW2 in the Erode Government Hospital and also the PW1 admitted that by 2.30 p.m itself the police obtained her thumb impression in the white papers. But the PW2 in her cross examination has stated that she written the complaint at the place of occurrence at about 1.00 noon and the said complaint was written on both sides and they obtained the thumb impression of her mother PW1 on both sides of the white paper and on the advise of the police only the complaint was written. Therefore the original complaint was suppressed.
The further contention of the learned counsel for the accused is that though the complaint was said to be given in the police station no margin space was left in the first page of the complaint but there was a large margin on the left hand side of the second page and there is a long gap between the thumb impression and the last line in the complaint. The PW1 admitted in her cross examination that the Sub Inspector of Police got her thumb impression in a white paper and one David and Karthick signed as witnesses in that and she doesn't know what was written in the paper and there were gaps in the writings. The PW2 clearly admitted that the police started the investigation by 4 'o' clock itself on 27.11.2015. Therefore the Ex.P.1 complaint is itself doubtful."
http://www.judis.nic.in (v) The learned Judge has further made the discussion about the deposition of P.W.1, which reads thus :
29
"36. In this case the PW1 is the informant and she only lodged the complaint. As per the list of witnesses filed along with the charge sheet the PW1 Lakshmi, the PW3 Radha, the PW5 Kamurudeen are cited as eye witnesses. The PW3 Radha and the PW5 Kamurudeen who are said to be the eye witnesses to the occurrence have turned hostile. Therefore the only eye witness available to the occurrence is the PW1, the informant and the mother of the deceased Balakrishnan.
37. The PW1 in her chief examination clearly deposed that the accused came to their house on 27.11.2015 and took the PW3 Radha and children to his house and at that time the deceased Balakrishnan prevented the accused from taking his wife Radha at that time the accused took the aruval from the bush and assaulted the deceased with the aruval and deceased Balakrishnan died on the way to the hospital because of the injuries sustained. The PW2 the younger sister of the deceased Balakrishnan and daughter of the PW1 clearly deposed that she heard the news from her father and rushed to the Naripallam and saw her brother died with blood coming out. The PW1 also deposed that she lodged the complaint to the Sub Inspector of Police, Chithode police station and the PW2 deposed that she only written the complaint Ex.P.1 and http://www.judis.nic.in her mother put her thumb impression in the complaint the PW12 the Special Sub Inspector 30 of Police registered the case u/s 302, 506(ii) IPC and the PW9 the Grade I constable submitted the first information report along with the complaint to the learned Judicial Magistrate No.III, Erode. The PW13 the then Inspector of Police deposed that he proceeded to the scene of occurrence and prepared the rough sketch and observation mahazar and recorded the statement of the witnesses and sent the body for post mortem through the Women Head Constable Kalaiselvi and conducted the inquest on the body of the deceased Balakrishnan and after that arrested the accused and recorded the MO1 aruval on the disclosure made by the accused. The PW8 Doctor clearly deposed about the external injuries and internal injuries found on the body of the deceased Balakrishnan and the Doctor opined that the deceased appeared to have died of the shock and hemorrhage due to multiple injuries sustained by him.
38. So it is clear from the evidence of PW1 that it was the accused who attacked the deceased Balakrishnan with aruval and caused the injuries sustained by the said Balakrishnan and the Doctor clearly deposed that the accused died of the shock and hemorrhage due to the injuries sustained by him."
(vi) However in the cross-examination, the P.W.1 has stated http://www.judis.nic.inthat, police came to the scene of occurrence at about 2 to 2.30 p.m, where they made an enquiry. P.W.1 further state in the cross- 31 examination that, police came to the hospital at about 3.30 p.m, where they had made enquiry and obtained signature (LTI of P.W.1) in the blank paper and thereafter it is claimed by P.W.1 that, she came along with her husband to the police station and gave the written complaint.
(vii) It is also the claim of the P.W.1 that, the complaint was written by Sub-Inspector of Police.
(viii) This absolute contradiction on the side of the P.W.1, who is the only eye witness and also the crucial witness for the entire prosecution case, has not been properly considered by the learned trial Court Judge.
(ix) With regard to the timing and delay of FIR is concerned, the learned trial Court Judge has made the following findings :
"56. The another contention of the learned counsel for the accused is that there is a delay of 51/2 hours in submitting the FIR and the complaint to the learned Judicial Magistrate No.III, Erode. As per the prosecution case, the date and time of occurrence is 27.11.2015 2.00 p.m. As per the statement of P.W.1 she lodged the complaint on 27.11.2015 at about 14.30 hours but the FIR was received by the http://www.judis.nic.in learned Judicial Magistrate, Erode by 7.30 p.m on 27.11.2015. The distance between the 32 scene of occurrence and the police station is 5 km. The distance between the police station and the learned Judicial Magistrate is 5 km. The distance between the police station and the learned Judicial Magistrate is 16 km. Therefore there is a delay of 5 1/2 hours in receiving the FIR along with the complaint by the learned Judicial Magistrate No.III, Erode. The delay of 5 1/2 hours are not properly explained by the prosecution.
57. The P.W.12, the Special Sub Inspector of Police deposed that he registered the FIR at about 14.30 hours and sent the FIR to the learned Judicial Magistrate No.III Erode. The first information report and the complaint was received by the learned Judicial Magistrate No.III, Erode at about 7.30 p.m night. The distance between the police station and the residence of the learned Judicial Magistrate No.III, Erode is 16 kms. If the journey time of one hour is deducted then the delay is only 4 hours. The delay of 4 hours is not an inordinate delay so far as the case is concerned. The delay of 4 hours in submitting the first information report is no way affects the prosecution case."
(x) The learned Judge proceeded as if the complaint was registered as FIR at 14.30 hours and which reached the learned http://www.judis.nic.in Magistrate by 7.30 p.m and accordingly, the learned Judge has given his finding that journey time could have been taken for one hour to 33 reach the Magistrate's residence. Therefore the 4 hours delay is not an inordinate delay. In this context, it is to be noted that the FIR was not registered at the police station at 14.30 hours instead it was claimed to have been registered only at 16.30 hours. Before the registration of FIR at police station at 16.30 hours, pursuant to the complaint given by P.W.1, claimed to have been written by P.W.2 and also claimed to have been written by Sub-Inspector of Police, the police according to P.W.1, had been in the scene of occurrence and also had been in the hospital, where enquiry was conducted and signature / LTI from P.W.1 were obtained in blank papers.
31. Why these crucial aspects have not been properly appreciated or not weighed the mind of the learned Judge in appreciating the defence theory.
32. That apart, there had been considerable flaw in the investigation of the Investigating Officer, which is evidenced from his very own deposition, as he (P.W.13) has made the following deposition in his cross-examination :
"Kjy; jfty; mwpf;if gjpt[ bra;j cjtp Ma;thsu; gpufhc&j;ij ehd; rhl;rpahf tprhupf;ftpy;iy/ kuz mwptpg;g[ fhty; epiyaj;jpw;F <nuhL muR kUj;JtkidapypUe;J 16/45 kzpf;F bgwg;gl;Ls;sJ/ nkw;go kuz mwptpg;g[ http://www.judis.nic.in ehl;Fwpg;gpy; Fwpg;gplg;gltpy;iy/ rk;gt ,lj;jpw;F ehd;
bry;Yk;nghJ khiy kzp 6/00 bjd;tly; tz;o jlk; vd;gJ 34 g[fhhpnyna Fwpg;gplhj nghJ vt;thW Kjy; jfty; mwpf;ifapy; Fwpg;gplg;gl;lJ vd;W tprhupf;ftpy;iy/ rk;gt ,lj;ij fUg;gz;z rhkp. nfhtpe;jrhkp Mfpnahu; milahsk; fhl;odu;/ m/rh/1d; tPl;ow;F Kd;g[wk; cs;s nuhL jhu;nuhL eupg;gs;sj;jpypUe;J khkuj;Jg;ghisak; bry;tjw;F mJjhd; nuhL/ me;j tz;ojlk; gpupfpwJ b$ah vd;gtu; tPl;il jhz;o tz;ojlk; gpupfpwJ/ gpupe;J bry;Yk; tz;ojlk; kPz;Lk; gpupe;J xd;W uhK ft[z;lu; tPl;oy; brd;W KofpwJ/ kw;bwhd;W KUfd; i!rp'; kpy;ypy; brd;W KofpwJ/ ,uz;L tz;ojlk; K:ykhft[k; khkuj;Jg;ghisak; bry;y KoahJ vd;W brhd;dhy; rupay;y/ vd;Dila tiuglj;jpd; goa[k;. ghu;itkf$u; goa[k; me;j ,uz;L tz;ojl';fSk; khkuj;Jg;ghisak; bry;fpwjh vd;why; ,y;iy/ /// ,e;j 2 tz;ojl';fSk; uhK ft[z;lUf;Fk;. KUfd; irrp'; kpy;Yf;Fk; brhe;jkhd jdpahu; tHpj;jl';fs;. me;j 2 tz;oj;jl';fSk; uhK ft[z;lu; tPl;ow;Fk;. KUfd; irrp'; kpy;ypw;Fk; bry;tjw;fhf mtu;fshfnt nghl;Lf;bfhz;l tz;oj;jl';fs; vd;W brhd;dhy; rupjhd;/ /// fhak; gl;l ghyfpUc&;zid kUj;Jtkidapy; nru;j;jJ mtUila jfg;gdhu; fhspag;gd; vd;W brhd;dhy; rupjhd;/ /// rk;gt ,lj;ij ehd; ve;jtpj g[ifg;glKk; vLf;ftpy;iy/ gpnujj;ija[k; ve;j tpj g[ifg;glKk; vLf;ftpy;iy/ /// kUj;Jtiu tprhupf;Fk; nghJ nkw;go fha';fshy; cldoahf kuzk; http://www.judis.nic.in Vw;gLkh vd;W ehd; kUj;Jtiu tprhupf;ftpy;iy/" 35
33. As has been quoted above from the deposition of the Investigating Officer, there had been lot of flaws in the investigation. The father of the deceased, who only, according to the prosecution, brought the deceased into the hospital and he accompanied with P.W.1 to give the complaint to the police station, but he has not been examined as a witness. When the rough sketch was prepared by the Investigating Officer, he has shown the cart track which ended with the nearby residence of Ramu Gounder and Murugan Gounder sizing mill, both the cart track do not lead further and it is also not the case of the prosecution that, this cart track would lead to Mamarathupalayam, i.e., the place of accused.
34. In this context, the deposition of P.W.1 also to be noted, where she has stated that, after the quarrel, the accused took his daughter and grand children towards Mamarathupalayam and while he was going on the black top road, leading to Mamarathupalayam, the daughter-in-law of P.W.1 (P.W.3) got fainted and therefore the accused took her in car.
35. When we look into these depositions comparing with the substances filed in support of the prosecution case and also the prosecution theory, it is an utter confusion and contravention, as http://www.judis.nic.in nothing has been corroborated from the side of the prosecution. 36
36. However the learned Judge in the Judgment impugned, has solely taken into account the P.W.1's deposition stating that, by completely believing the P.W.1's evidence, he decided to inflict the punishment on the accused.
37. It is also found by the learned Judge that, the accused did not have any intention to kill the deceased and the finding of the learned Judge in this regard reads thus :
"63. On perusal of the entire records and evidence it is clear that the accused was not having any intention to kill his son-in-law the deceased Balakrishnan."
38. In view of the aforesaid findings that, the accused did not have any intention to kill the deceased, the learned Judge ought to have probed the actual intention of the accused, even assuming the theory of prosecution is correct, as to why the accused brought and kept hiding the M.O.1, Aruval at the bushes behind the sizing mill.
39. Since the cart track, where the alleged occurrence said to have taken place, according to the prosecution, is not the actual way to lead the place of the accused, i.e., Mamarathupalayam, absolutely there is no scope for the accused to hide the weapon in the bush along http://www.judis.nic.in side of the said cart track. Moreover the P.W.1 also stated that, he 37 was moving towards Mamarathupalayam only through the main thar road, which leading to the said place and this has been seen from the very rough sketch filed by the prosecution.
40. In this context, the alternative theory projected by the defence side through the P.W.1's cross-examination can be worthy to be noted :
"vdJ kUkfSk;. kfDk; fhjy; jpUkzk; bra;Jbfhz;lhu;fs;/ jpUkzj;jpw;F gpwF vd; kUkfs; vd; tPl;oy; jhd; FoapUe;jhu;/ vjpup rkhjhdkhf vd; tPl;ow;F nghf tu ,Ue;jhu;/ vjpupapDila tPL vd; tPl;oypUe;J 1 fpnyh kPl;lu; J}uj;jpypUf;fpwJ vd;why; rupjhd;/ vdJ tPl;il Rw;wp 3 tPLfs; ,Uf;fpd;wd/ tPl;ow;F vjpu; g[wk; irrp'; kpy;!; cs;sJ/ vd; tPl;ow;F vjpu; g[wkhf fpHnkyhf khkuj;Jg;ghisak; bry;Yk; nuhL ,Uf;fpwJ vd;why; rupjhd;/ vjpupapd; tPL khkuj;Jg;ghisak;/ vd; tPl;ow;F tlf;nf cs;s nuhL rpj;njhL bry;fpwJ/ vd; tPl;ow;F nkw;nf mg;g[ ft[z;lu; tPL ,Uf;fpwJ/ me;j jlk; ,uz;lhf gpupe;J xU jlk; irrp'; kpy;ypy; ngha; KofpwJ/ jlj;jpw;F ,uz;L g[wKk; caukhf tsu;e;j g[ju;fs; cs;sd/ vd; kfd; 7tJ tiu goj;jpUe;jhu;/ jpUkzkhd gpwF vdJ kfDk;. kUkfSk; re;njhc&khfj;jhd; ,Ue;jhu;fs;/ vd; kfDf;F Fog;gHf;fk; cz;L. vd; kfd; tPug;gd;rj;jpuj;jpy; 15 tUl';fs; nurd; filapy; ntiy bra;jhu;/ 27/11/2015f;F Kd;g[ 3 tUl';fSf;F Kd;ng ,we;J nghd vd; kfd; nurd; fil ntiyapypUe;J epd;W tpl;lhd;/ nurd; fil ntiyapypUe;J epd;w gpwF epue;ju ntiy http://www.judis.nic.in fpilahJ/ vd; kfd; mof;fo Fog;gjhy; CUf;Fs; gpur;rid tUk;/ nurd; filapy; ntiy bra;j nghJ gpuhe;jpfilapy; Foj;Jtpl;L 38 vd; kfDf;F fhak; Vw;gl;lJ vd;W brhd;dhy; mJ gw;wp vdf;F bjhpahJ/ vd; kfd; Foj;Jtpl;L mof;fo jfuhW Vw;gl;ljhy; me;j gpur;ridf;fhf nghyP!; !;nlrd; nghdJz;L/ me;j khjpupahd R{H;epiyfspy; vd; kfDf;F fhak; Vw;gl;L murh';f M!;gj;jpupf;F mDg;gpdhu;fs; vd;why; mJ gw;wp vdf;F bjupahJ/ vd; brhe;jfhuu; kzp vd;gtu; khkuj;Jg;ghisaj;jpy; kspif fil itj;jpUf;fpwhu;/ nkw;go kzp mk;kh ,wg;gpw;F ehd; nghftpy;iy/ kzp mk;kh ,we;jnghJ <kr;rl';fspy; gl;lhR btog;gJ Fwpj;J jfuhW Vw;gl;lJ vd;W bjupa[k;/ vd; kfd; gl;lhR btof;f ntz;lhk; vd;W brhd;djhy; jfuhW Vw;gl;lJ vdf;F bjupa[k;/ ehDk;. vjpupa[k; ehlhu; rhjpia nru;e;jtu;fd;/ CUf;Fs; rhkpf;F g{r;rhl;Ljy; tpHhtpy; jfuhW Vw;gl;lJ/ me;j rkaj;jpy; Cu;f;fhuu;fs; vd; kfis js;sptpl;Ltpl;lhu;fs;/ mjpypUe;J mtu; vjw;Fk; nghtjpy;iy/ Cupy; g{r;rhl;LtJ ft[z;lu;fsila Kiw/ mjpy; ehlhu; rK:fj;ij nru;e;jtu;fs; cupikf;nfhu KoahJ vd;W brhd;dhy; rupjhd;/ Cupy; g{r;rhl;Ltjw;fhf cupik nfl;L kPz;Lk; jfuhW Mfptpl;lJ vd;W brhd;dhy; rupjhd;/ mg;g[f;ft[z;lu; bfh';F ntshsu; rK:fj;ij rhu;e;jtu;/ mg;g[f;ft[z;lUld; g{r;rhl;Ljy; rk;ke;jkhf vd; kfDf;F jfuhW cz;L/ vd; tPl;ow;F Kd;g[s;s fhL mg;g[f;ft[z;lUf;F brhe;jkhdJ/ vd; kfd; fhak; gl;L fple;j ,lk; mg;g[f;ft[z;lUf;Fk;. KUnfr ft[z;lUf;Fk; brhe;jkhd jlk;/ ,e;j g{r;rhl;Ljy; rk;ke;jkhf mg;g[f;ft[z;lu; mtUld; nru;e;J 50 ngu; Cu;f;fhuu;fs;/ fhu; igf;fpy; v';fs; tPl;ow;F te;J vd; kfid moj;J M!;gj;jpupapy; bfhz;L nru;j;Jtpl;lhu;fs; vd; brhd;dhy; rupjhd;/ ,t;thW mg;g[f;ft[z;lu; Cu;f;fhuh;fs; vd; kfid te;J moj;jnghJ vd; kUkfs; uhjht[f;F $d;dp te;Jtpl;lJ/ http://www.judis.nic.in vd; kUkfSf;F if. fhy; ,Gj;J Eiu js;sptpl;lJ/ mijg;ghu;j;J mg;g[f;ft[z;lu; kw;Wk; mtUld; te;jtu;fs; vd; kfid 39 M!;gj;jpupapy; bfhz;Lngha; nru;j;jhu;fs;/ ,y;yhtpl;lhy; md;nw mtu;fs; vd; kfid VjhtJ bra;jpUg;ghu;fd; vd;W brhd;dhy; rupjhd;/ md;iwa jpdk; ,ut[ Rkhu; 7/30 kzpastpy; vd; kUkfSk;. kfDk; FHe;ijfSld; g{l;of;bfhz;L tPl;oypUe;jhu;fs;/ me;j rkaj;jpy; mg;g[f;ft[z;lUk; 50 ngu;fSk; fjit cilj;J tPl;ow;Fs; brd;W vd; kfid moj;jhu;fs;/ mg;nghJ ehd; btspapy; ,Ue;njd;/ rk;gtj;ij neupy; ghu;j;J fj;jp fPnH tpGe;Jtpl;nld;/ kPz;Lk; ehd; mg;g[f;ft[z;liu if vLj;J Fk;gpl;ljhy; tpl;Ltpl;L ngha;tpl;lhu;fs;/ ,y;iybad;why; md;nw vd; kfid bfhd;wpUg;ghhu;fs;/ ,J Fwpj;J vd; kfd; jdpahu; kUj;Jtkidapy; nru;f;fg;gl;lhu;/ jdpahu; kUj;JtkidapypUe;J rpj;njhL fhty; epiyaj;jpw;F jfty; brd;W rpj;njhL fhty;epiyaj;jpypUe;J vd; kfida[k;. mg;g[f;ft[z;ly; tifawhf;fisa[k; rpj;njhL nghyPrhu; tutiHj;J ehlhu; rK:fj;jpw;Fk;. ft[z;lu; rK:fj;jpw;Fk; jfuhW tuf;TlhJ vd;W rkhjhdk; bra;J itj;jhu;fs;/ ,e;j rk;gtj;jpw;F gpd;t[ vd; kfd; ghJfhg;gpw;fhf fl;oYf;F fPnH fj;jp itj;jpUg;ghu;/ me;j fj;jp rhd;W bghUs; nghd;w fj;jp fpilahJ/ me;j fj;jp E';F rPt[k; fj;jp nghd;wJ/ ehd; ,Uf;Fk; ,lk; eupg;gs;sk; jhd;/ ,e;j g{r;rhl;Ljy; jfuhWf;F Kd;ghf eupg;gs;sj;jpy; ehlhu; rK:fj;ij rhu;e;jtu;fs; 40 FLk;gk; ,Ue;jpUf;Fk;/ mnj 4 ehlhu; rK:f FLk;g';fs; jhd; mg;nghJ v';fs; tPl;ow;F gf;fj;jpy; ,Ue;jhu;fs;/ mjw;F gpwFk; ,Ue;jhu;fs;/ vd; tPl;ow;F nkw;nf fht;ah vd;w gl;liw ,Uf;fpd;wJ/ me;j gl;liw ft[z;lu; gl;liw jhd;/ me;j gl;liwapy; cwpe;jp fhu igad;fs; ,Uf;fpwhu;fs;/ me;j cwpe;jp fhu igad;fs; td;dpau; bgz;fis ifia gpoj;J ,Gj;J jfuhW bra;jjpy; cwpe;jpfhu igad;fSf;Fk; http://www.judis.nic.in vd; kfDf;Fk; cwpe;jpfhu igad;fSf;Fk; vd; kfDf;Fk; jfuhW Vw;gl;lJz;L/ md;iwa jpdk; gl;liwf;fhuh;fns te;J cwpe;jp 40 fhu igad;fis KLf;fptpl;L tpl;lhu;fs;/ iffyg;g[ vJt[k; vd; kfDf;Fk; cwpe;jp fhu igad;fSf;Fk; Vw;gltpy;iy/ Cupy; cs;s fput[z;oy; vd; kfd; jz;zpaof;f brd;W mg;nghJk; m';F
2. 3 Kiw jfuhW Vw;gl;oUf;fpwJ/ vd; kfd; vg;nghJ Cu; gpur;ridf;F Kd;g[ epw;ghu;/ vd; kfd; FLk;gj;ij ftdpg;gjpy;iy vd;W brhd;dhy; rupay;y/ mtDk; FLk;gj;ij ghu;g;ghd; eh';fSk; FLk;gj;ij ghu;g;ghd;/ ,t;thW Cu;g;gpur;ridapy; mof;fo jiyaPLtjhy; vd; kfd; kPJ vdf;F tUj;jkpy;iy vd;W brhd;dhy; rupay;y/ rpd;d taJ vd;W brhy;yp vy;yh bghWg;g[k; ehd; jhd; bra;njd;/ fj;jpf;Fk; mUthSf;Fk; tpj;jpahrk; vdf;F bjupahJ/ eh';fs; ehlhu; ,dj;ij nru;e;jtu; vd;Wk; tptrhaj;jpw;fhf kukl;il. E';F rPt[tjw;Fk; bjupe;jtu;fs; vd;gjhy; fj;jpf;Fk; mUthSf;Fk; tpj;jpahrk; bjupa[k; vd;why; fj;jpf;F kl;Lk; tpj;jpahrk; bjhpa[k;/"
41. After having analysed the afore stated evidences both orally and document wise and analysing the theory of the prosecution as well as the defence theory, this Court finds that, there had been number of contradictions which are reflected in the evidence of P.W.1, who, according to the prosecution is the crucial witness and in fact the only eye witness. The learned Judge also has fully depended the oral evidence of P.W.1. However the learned Judge has failed to note the self-contradiction of P.W.1's evidence as she deposed that, the police was present at the scene of occurrence as well as at the hospital and signatures / LTI was obtained by the police at the hospital in the blank http://www.judis.nic.in paper.
41
42. When that being so, how the prosecution can establish a case by merely stating that, P.W.1 came along with her husband and gave a complaint only at 16.30 hours on 27.11.2015, based on which FIR was registered and investigation commenced.
43. The very Sub-Inspector of Police, who registered the FIR, according to the prosecution, i.e., P.W.12, has deposed that at 14.30 hours complaint was given, FIR was registered.
44. Based on the said theory, the learned trial Court Judge was trying to justify the delay caused by the prosecution in sending the FIR to the Magistrate at 7.30 p.m on the same day. However the fact remains that, the respondent police, even according to the P.W.1's evidence, had been in the scene of occurrence as well as at the hospital and had an enquiry. If that being so, why the police had not registered the FIR at the first instance, which goes to the root of the matter and the same unfortunately has not been probed and decided in proper perspective by the learned Judge.
45. The Law is well settled in this regard in the criminal jurisprudence that, if prosecution theory become unbelievable by not http://www.judis.nic.in only a mere delay of FIR but also the very basis of the FIR, the whole 42 theory of prosecution could get shattered.
46. Here in the case in hand, the father of the deceased who was the crucial witness, according to the prosecution, was not at all examined. The trial Court having accepted that, the accused did not have any intention to murder the deceased, had not considered the crucial aspect on the prosecution theory that, as to why and for what purpose the accused hidden the weapon at the bush on the along side of the cart track.
47. The trial Court also had not considered in proper perspective the P.W.1's evidence regarding the previous enmity, which developed by the deceased against a particular community people, who were predominantly residing in that locality. In fact on earlier occasion they came in large numbers to attack or kill the deceased.
48. The learned Judge has not considered the defence theory, which has been in fact accepted by P.W.1 in her cross- examination that, few days back of the occurrence, there had been a quarrel between the deceased and the north Indian workers working in the nearby mill, which belongs to one of the dominant community person, against whom such animosity had been developed by the deceased.
http://www.judis.nic.in 43
49. Without appreciating any of these aspects, the learned trial Court Judge has mechanically believed the theory of prosecution by taking into account only a selective portion of the evidence of P.W.1 and had come to a conclusion that P.W.1, even though a solitary witness, had won over the confidence of the Court and therefore based on which the trial Court had come to a wrong conclusion to fix the guilt on the accused and thereby convicted him.
50. However this Court, after having scanned the entire materials placed before it, after having thread bear discussion about the veracity of the evidence, especially the completely self- contradictory evidence of P.W.1, is of the considered view that, the prosecution theory has not been proved with supporting evidence. There had been number of flaw on the side of the prosecution and absolutely there is no justification on the side of the prosecution to state that, the investigation was triggered only on receipt of the complaint from P.W.1 and filing of FIR at 16:30 hours. The presence of police persons at the scene of occurrence as well as the hospital, as claimed by P.W.1, has been easily brushed aside or not even considered by the learned trial Court Judge, which is very erroneous.
51. Therefore, for all these reasons and discussion made above, this Court has no hesitation to come to a just conclusion that, http://www.judis.nic.in the prosecution theory is failed or has not been proved beyond 44 reasonable doubt. Therefore the Judgment of the trial court and the conviction followed by it is without appreciable and undoubtful evidence on the side of the prosecution. Hence, the impugned Judgment and sentence is liable to be interfered with.
In the result, the impugned Judgment and conviction made by the trial Court in S.C.No.115 of 2016 on the file of the I Additional District and Sessions Court, Erode, dated 16.02.2017 is hereby set aside. The accused is set at liberty. The trial Court shall release the appellant / accused forthwith, if his presence is not required in connection with any other case. Accordingly, this Criminal Appeal is allowed. Consequently, connected miscellaneous petition is closed.
05.12.2018
Index : Yes
Speaking Order
tsvn
To
1. The I Additional District and Sessions Court, Erode.
2. The State by Inspector of Police Chithode Police Station, Erode District.
http://www.judis.nic.in
3. The Public Prosecutor High Court of Madras, Chennai.
45
R.SURESH KUMAR, J.
tsvn Judgment in Crl.A.No.124 of 2017 http://www.judis.nic.in 05-12-2018